There’s Gotta Be A Better Way!

Jim Rioux works in water policy for the Department of Health’s Division of Drinking Water. The views expressed here do not represent the positions of the Department of Health.

This is part five and the final part in the series about water law in Washington state.

Part Five

In previous issues of Whatcom Watch, we took a brief look at Governor Locke’s ongoing efforts to reform the state’s water laws (see “Water Rights and Agriculture,” January 2003, page 1).

This was followed by an overview of the state’s water code (see “A History of Water Law,” February 2003, page 12) and an examination of how the water code works in relations to instream flow and fish protection (see “Protecting Instream Flows,” April 2003, page 10) and growth management (see “Water Planning and Growth,” May 2003, page 14).

In general we concluded that the governor’s efforts are much needed, but progress is slow. The water code is a Rube Goldberg assemblage of confusing and often conflicting elements founded in concepts of water management that were formed almost a century ago. The result is that it promotes neither effective environmental protection nor good growth management.

These conclusions are no revelation to civic leaders, water resources and wildlife managers or environmentalists. For decades the state has struggled with the inadequacies of the water code. Most efforts at reform have been attempts to modify the code to meet specific needs, but some have represented new approaches to water management to better meet the needs and reflect the values of the society we live in today.

One of the most notable of these efforts was the Water Resources Act of 1971. This legislation was the first attempt to shift the fundamental approach of the water code from water allocation to water management. Some of the most significant elements of the Water Resources Act are found it the following statements of legislative intent.

All citizens of Washington share an interest in the proper stewardship of our invaluable water resources. To ensure that available water supplies are managed to best meet both instream and offstream needs, a comprehensive planning process is essential. The people of the state have the unique opportunity to work together to plan and manage our water.

Through a comprehensive planning process that includes the state, Indian tribes, local governments and interested parties, it’s possible to make better use of available water supplies and achieve better management of water resources. Through comprehensive planning, conflicts among water users and interests can be reduced or resolved.

It is in the best interests of the state that comprehensive water resource planning be given a high priority so that water resources and associated values can be utilized and enjoyed today and protected for tomorrow. (RCW 90.54)

While this legislation is noteworthy, it was only a partial effort. Left in place were the basic water allocation principles and processes from the turn of the century. Furthermore, by incorporating environmental values and establishing the basis for the state’s Instream Flow regulations, this act placed the tensions between environmental protection and water allocation squarely within the state’s water code.

With the conflicting values pulling at the fabric of the water code, the state legislature established the Joint Select Committee on Water Resource Policy. The committee was to “provide direction to the legislature on the fundamentals of water resource policy for the state of Washington.”

Even though the committee was mired in growing controversy, it did result in a report from an independent fact finder entitled Washington’s Water Future. This report did not, as had been hoped, lead to new water legislation. It did, however, identify the major issues and concerns of various water resource stakeholders.

Among its listing of concerns and recommendations, there was a thematic call for “more balance in water allocation decisions” and a comprehensive process involving state, regional and local decision makers in water resource management decisions. Taken together it can be concluded that all were calling for a holistic approach to water management that addressed a broad spectrum of public needs.

With the report from the Joint Select Committee lying dormant, Christine Gregoire, then the Director of the Department of Ecology, seized the initiative and convened a three-day retreat at the Rosario Resort in the San Juan Islands.

“It was attended by 175 leaders, representing a great variety of constituencies, including state and tribal, as well as local government representatives and many others. As a result of three days of discussion and negotiation, the group agreed that cooperative water resource planning is the mutually desirable approach to solving the complex set of issues surrounding decisions on water.” (The Chelan Agreement: A Partnership of Responsibilities, produced by the Northwest Indian Fisheries Commission, 1991)

By the end of the year, this process had produced a far-reaching water agreement known as the “Chelan Agreement.” Among it’s many elements, the Chelan Agreement initiated a process of water management based on hydrologic unit, or watershed. Two pilot watershed management projects were initiated in the Dungeness and Methow basins.

Throughout the early part of the 1990s, the pilot projects struggled with the complexities integrating competing values and political agendas with no road map to guide this new approach to water management. By the latter part of the decade it became clear that the state needed a watershed management process embodied in law.

In 1997, a sweeping watershed management bill made its way to the desk of Governor Locke. The associated cost, complexity and controversy caused the governor to veto most of the bill’s provisions.

By 1998, however, the legislature produced a bill that the governor was able to sign. With recent listings of several salmon species, the Watershed Management and the Salmon Recovery Acts of 1998 provided important tools for water management and fish recovery within a watershed-based structure.

Key provisions of the Watershed Management Act include funding for local planning units, a high degree of local control and flexibility and a four-year time limit for completing the plans. Critics of the process saw the local flexibility as a major weakness of the process. That flexibility, it was argued, resulted in virtually no accountability.

Another shortfall was lack of funding or process for plan implementation, an issue that the state legislature is expected to take up in the upcoming legislative session. Locally, there are active watershed planning units in all watersheds that drain to the South Puget Sound. If planning units are able to meet their four-year deadlines, draft plans will be reaching completion during 2003 and 2004.

It remains to be seen whether this local planning will be able to create the new model for water management based upon an ecological approach to water allocation and resource protection. Even if the plans are completed, it is very unclear how they will affect the existing processes established in state law.

It seems unlikely that, with the stakes increasing every day, the interests vested in the existing system will surrender those interests to a process with uncertain outcome. It is a fundamental tenet of the state’s water code that the “right” to divert or withdraw the waters of the state is usafructory, which is to say subject to conditions established by the state.

However, actions by the legislature, the Department of Ecology and the courts have resulted in so many restrictions on the state’s ability to “condition” a water right that they have moved alarmingly close to property rights. As long as water rights holders see the existing system as supporting their unrestricted and unconditional right to exercise their water rights, what could possibly motivate them to surrender them to a new process?

So where do we go from here? In my first article I noted that the most interesting aspect of the 2002 legislative process was the lack of citizen involvement. Legislators, governors, local elected officials cannot be expected to act on difficult issues if the public seems to have no interest.

Water management touches us all every day. Every time we pour a glass of water, clean the wound, bath, dispose of waste or operate critical medical equipment, we are impacted by decisions made and decisions deferred.

Every time we pour excess water into the streets, build unwisely, waive requirements in the name of “jobs,” we make those decisions more and more difficult to make. We can continue to ignore the problems and leave our water management system in a state of disarray; however we do so at our peril.

If the consequences of environment degradation, compromised public health and diminished quality of life do not get your attention, consider the modern looming threat. A groundswell of academic and journalistic opinions that recognize that the major global resource issue of the future will be water is beginning to form.

If we are to learn anything from modern economics, it is that management in disarray leads to collapse. There are arid nations that see this nation’s water resources as the solution to there problems. There is a growing body of globalization bureaucrats that share that opinion.

As NAFTA erodes states’ rights in ways never imagined by Jefferson Davis, and corporate capitalism pushes for privatization of public resources, the chaos of state management of water resources places those resources at risk in a new and chilling way. If you don’t like the Department of Ecology, how do you feel about corporations, other nations or WTO bureaucrats telling you how much water you get and how much you pay for it? My recommendation is that you call you legislator. §

This article originally appeared in the South Sound Green Pages, a member-supported journal of environmental news and commentary based in Olympia. The views expressed here do not represent the positions of the Department of Health.